Andhra Pradesh High Court - Amravati
Shaik Abdul Rasool vs Shaik Nagul Meera on 23 December, 2019
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SA_566_2019
THE HON'BLE SRI JUSTICE M.SEETHARAMA MURTI
Second Appeal no.566 of 2019
JUDGMENT:
This second appeal, under Section 100 of the Code of Civil Procedure, 1908, is filed by the unsuccessful defendants assailing the decree & judgment, dated 24.07.2019, of the learned Senior Civil Judge, Mangalagiri, passed in AS.no.44 of 2015, whereby, the learned Senior Civil Judge, while dismissing the said first appeal, confirmed the decree & judgment, dated 28.09.2015, of the learned Principal Junior Civil Judge, Mangalagiri, passed in OS.no.202 of 2014 filed by the plaintiff - respondent herein against the defendants - appellants herein for declaration that the plaintiff is the absolute owner of the plaint schedule property and for consequential relief of recovery of possession of the plaint schedule property and for costs.
I have heard the submissions of learned counsel for the appellants - defendants; and, of learned counsel, on caveat, appearing for the respondent - plaintiff, at the stage of admission. I have perused the material record including the judgments of the Courts below.
The parties in this judgment shall hereinafter be referred to as arraigned in the original suit for convenience and clarity.
To begin with, it is necessary to note the pleadings/cases of the parties and the events that led the defendants to prefer this second appeal.
The case of the plaintiff, in brief, is this: - 'Plaintiff is the absolute owner of the plaint schedule property, having succeeded to the same in a partition between him and his brothers. The plaintiff left the village - Ravela and started living in Pedakakani for his livelihood. At the request of the 1st defendant, he leased out the plaint schedule land to him on payment of maktha. The 1st defendant paid maktha every month upto two years prior to 2 MSRM,J SA_566_2019 the institution of the suit. He did not pay the maktha for the said two years inspite of repeated requests of the plaintiff. The plaintiff was shocked and surprised to know that the 1st defendant has obtained pattadar passbook and title deed book in his name in respect of the plaint schedule land by managing the revenue authorities and by taking undue advantage of the fact that the plaintiff is not residing in the village. The 1st defendant got mutated his name in the revenue records by making false representations and without the knowledge of the plaintiff and with an ulterior motive to grab the plaint schedule property of the plaintiff. Having come to know of the said facts, and, as the 1st defendant had acted detrimental to the interests of the plaintiff, the plaintiff questioned the 1st defendant and demanded to deliver vacant possession of the plaint schedule property to the plaintiff. On further enquiries, the plaintiff came to know that the 1st defendant executed a registered gift deed, dated 24.06.2014, in respect of the plaint schedule property in favour of his son, that is, the 2nd defendant. Both the defendants colluded together and brought into existence the said registered gift deed with a dishonest intention to grab the plaint schedule land, which belongs to the plaintiff. The 1st defendant has no manner of right, title and interest over the plaint schedule property. Hence, the 2nd defendant did not acquire any right, title and interest in the plaint schedule property under the said gift deed. In the said circumstances, the plaintiff got issued a registered legal notice, dated 22.08.2014, to both the defendants calling upon them to execute a deed of cancellation/revocation for cancellation/revocation of the registered gift deed in respect of the plaint schedule property and deliver vacant possession of the plaint schedule land to the plaintiff. The defendants issued a reply, dated 30.08.2014, with false, frivolous, mischievous and untenable allegations, however, admitting that the plaintiff got the plaint schedule land in a family partition. Hence, the suit is filed for declaration of the plaintiff's title over 3 MSRM,J SA_566_2019 the plaint schedule property and consequentially for recovery of possession of the plaint schedule property from the defendants.' The case of the defendants, apart from the denial of the case pleaded by the plaintiff, is this: - 'The plaint schedule property and other properties are self acquired properties of Shaik Fakeer Ahmed, who is the father of the plaintiff and the 1st defendant. After the death of the father, all the sons partitioned the properties of the father about 30 years back. In the said partition, the plaint schedule property fell to the share of the plaintiff. To purchase another property at another place, the plaintiff has offered for sale, the plaint schedule property. After due negotiations between the plaintiff and 1st defendant, the 1st defendant offered to purchase the plaint schedule property at bill maktha rate of Rs.10,250/-. The plaintiff accepted the said offer and sold the plaint schedule land to the 1st defendant for the said amount and accordingly executed a possessory agreement of sale, dated 14.01.1994, in favour of the 1st defendant by receiving the entire sale consideration and delivered possession of the plaint schedule land to the plaintiff on even date. Since then, the 1st defendant is in peaceful possession and enjoyment of the plaint schedule property as absolute owner thereof. Revenue authorities recognized the possession of the 1st defendant over the schedule land and issued pattadar passbook and title deed book in respect of the plaint schedule property to the 1st defendant. The said fact is very well known to the plaintiff. The plaintiff agreed to execute a registered sale deed in favour of the 1st defendant or his nominee whenever demanded. Due to close relationship, the 1st defendant did not obtain regular registered deed with the fond hope that the plaintiff will execute the sale deed as and when demanded. For the reasons best known, the plaintiff got issued the notice, which was referred to in the plaint. The plaintiff also issued another notice prior to the said notice with all false allegations. In the two notices, the plaintiff averred different and 4 MSRM,J SA_566_2019 contradictory stories. The main intention of the plaintiff for initiation of the litigation is to cause wrongful loss to the 1st defendant. Recently, the values of the properties in the localities increased abnormally. Due to that reason, the plaintiff started the un-necessary litigation by issuing notices. The 1st defendant executed the gift deed in favour of his son, 2nd defendant, out of love and affection. The said fact is also known to the plaintiff. In the reply notice got issued, the defendants demanded the plaintiff to execute regular registered sale deed in favour of the 1st defendant or his nominee in respect of the plaint schedule property as per the terms and conditions mentioned in the contract of sale. The 1st defendant is always ready and willing to perform his part of the contract and obtain a regular registered sale deed in his favour. However, on account of the promises and representations of the plaintiff and due to close relationship between the parties, the 1st defendant did not take any action for obtaining regular registered sale deed. After exchange of notices, the plaintiff approached the defendants and promised to execute regular registered sale deed in favour of the defendants or their nominee within a few days and confessed that at the instance of his family members, he got issued the notice with false allegations and that he will rectify his acts by executing the registered sale deed in favour of the 1st defendant or his nominee. Having believed the said representations and with an intention to avoid unnecessary litigation, the defendants were waiting for obtaining regular registered sale deed. Surprisingly and on second thoughts, the plaintiff filed the suit with false allegations to harass the defendants. The defendants are contemplating to take steps to obtain regular registered sale deed from the plaintiff by filing suit for appropriate reliefs. Hence, the suit may be dismissed.' Having regard to the above pleadings, the trial Court settled the following issues for trial.
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1. Whether the plaintiff is entitled for declaration?
2. Whether the plaintiff is entitled for consequential relief of recovery of possession of the plaint schedule property?
3. The civil Court got jurisdiction to try the suit?
4. To what relief?
During the course of trial, plaintiff and his supporting witnesses were examined as PWs 1 to 3 and the 1st defendant and his supporting witness were examined as DWs1 & 2. Exhibits A1 to A3 were marked on the side of the plaintiff and exhibit B1 was marked on the side of the defendants. Exhibit A1 is registration extract of gift deed, dated 24.06.2014, executed by 1st defendant in favour of 2nd defendant. Exhibit A2 is office copy of legal notice issued by the plaintiff to the defendants along with postal receipts. Exhibit A3 is reply notice, dated 30.08.2014, issued by the defendants. Exhibit B1 is the certified copy of plaint in OS.no.173 of 2015 on the file of Principal Junior Civil Judge's Court, Mangalagiri.
On merits and by the judgment, dated 28.09.2015, the trial Court decreed the suit of the plaintiff and directed the defendants to vacate and deliver vacant possession of the plaint schedule property to the plaintiff. Aggrieved thereof, the defendants preferred the afore-stated appeal before the Court of the Senior Civil Judge, Mangalagiri. By the judgment impugned in this second appeal, the learned Senior Civil Judge, had dismissed the appeal suit of the defendants and confirmed the decree and judgment of the trial Court. Aggrieved thereof, the defendants preferred this second appeal.
In this backdrop, learned counsel for the unsuccessful defendants - appellants contended as follows: -
The plaintiff averred in the plaint that the plaintiff leased out the plaint schedule land to the 1st defendant on an annual maktha. Therefore, the provisions of Andhra Pradesh (Andhra Area) Tenancy Act, 1956 are applicable. As such, if the plaintiff has got any grievance, he ought to have filed a petition 6 MSRM,J SA_566_2019 under the relevant provisions of the said Act for eviction as the 1st defendant is a cultivating tenant of the plaint schedule land. Both the Courts below failed to take into consideration the averments in the plaint and also the legal position obtaining. The plaint averments determine the jurisdiction of a Court. In view of the plaint averments, the Tenancy Tribunal under the said Act is only having jurisdiction and not the regular civil Court. The competent officer to deal with the matter is the Special Officer as the dispute to be decided between the parties is a tenancy dispute in respect of the plaint schedule land. Hence, civil Court has no jurisdiction. Both the Courts below failed to take into consideration the fact that the 1st defendant is in possession and enjoyment of the plaint schedule property under a possessory agreement of sale and that a suit in OS.no.173 of 2015 was already filed on the file of Principal Junior Civil Court, Mangalagiri, for specific performance of the said contract of sale. Exhibit B1 is the copy of the plaint in the said suit. The 1st defendant never denied the title of the plaintiff over the plaint schedule land. He only claimed that he purchased the property from the plaintiff under a possessory agreement of sale. In the plaint, there is no mention of either the details of defaults in payment of makthas or the quantum of the maktha payable every year. No claim for arrears of maktha was made.
Having so contended, he submitted that the following substantial questions of law are involved.
1. Whether the civil court has got jurisdiction to entertain the suit in regard to the disputes between the landlord and his cultivating tenant?
2. Whether the respondent/plaintiff is entitled to approach the civil Court for his reliefs, when he is clearly and categorically admitted in the plaint that the 1st appellant is a cultivating tenant of the plaint schedule property?7
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3. Whether the provisions of The Andhra Pradesh (A.A) Tenancy Act, 1956, are applicable to the facts of the case or not? Learned counsel for the 1st defendant relied upon the following decisions in support of the contention that the plaint averments only determine the jurisdiction and that the Civil Court, hence, has no jurisdiction to order eviction of the 1st defendant, who is cultivating tenant of the plaint schedule land.
1. K. Kasulu v. The Commissioner, Endowments Department and others [1986(2) ALT 44(NRC).
2. Nimmagadda Venkaiah and others v. Sri Sangameswara Swamy Temple [1993(2) ALT 283].
3. Abdulla Bin Ali and others v. Gapalla and others [(1985) 2 SCC
54. Learned counsel for the respondent - plaintiff while supporting the concurrent findings of fact recorded in the judgments of the Courts below contended as follows: 'It is true that originally the 1st defendant was inducted into plaint schedule land as a cultivating tenant on payment of annual maktha. However, he committed default in payment of maktha for two years prior to the institution of the suit. On enquiries, the plaintiff came to know that 1st defendant got mutated the plaint schedule land in his name and obtained pattadar pass book and title deed book in his name in respect of the plaint schedule property and that he also executed a registered gift deed in favour of his son, that is, the 2nd defendant. The 1st defendant, having pleaded that he is having a possessory agreement of sale, denied the title of the plaintiff and set up title in himself in respect of the plaint schedule land and even executed a registered gift deed in favour of his own son though he has no right, title and interest over the plaint schedule land. The very conduct of the 1st defendant 8 MSRM,J SA_566_2019 shows that he denied title of the plaintiffs. The Tenancy Tribunal can only deal with the issue of eviction when the relationship of landlord and tenant is admitted. However, when the title is denied, the Tenancy Tribunal is not having jurisdiction to decide the title. Hence, the plaintiff was obliged to approach a civil Court for declaration of his title and consequential relief. Both the Courts below considered the issue of jurisdiction, which is also a mixed question of fact & law and recorded concurrent findings in favour of the plaintiff and decreed the suit of the plaintiff and ordered eviction of the defendants from the plaint schedule land. The questions raised are not substantial questions of law. The questions raised are pure questions of fact and not even mixed questions of fact & law or pure questions of law. No substantial questions of law are involved. Hence the second appeal is liable for dismissal at the stage of admission.
I have given earnest consideration to the facts and submissions. The only question raised is as to whether the civil Court is having jurisdiction to entertain the suit filed by the plaintiff for declaration of title and recovery of the plaint schedule property from the defendants.
Admittedly, the 1st defendant was inducted into possession of the plaint schedule land as a tenant. However, according to the plaintiff the 1st defendant did not pay maktha for two years prior to the institution of the suit and on enquiries plaintiff came to know that the 1st defendant, by playing fraud and misrepresenting facts, got the property mutated in his name and obtained pattadar pass book and title deed book from the revenue authorities in respect of plaint schedule land and thus denied the title of the plaintiff and set up title in himself and even executed a registered gift deed in favour of his son in respect of the plaint schedule land and that in the said circumstances when the title is denied and a cloud is cast on the title of the plaintiff, the 9 MSRM,J SA_566_2019 plaintiff had no other option but to sue for declaration of title and seek the relief of recovery of possession of plaint schedule land.
Per contra, at one breathe, 1st defendant contends that when the plaintiff offered to sell the plaint schedule land he accepted the offer and purchased the plaint schedule property by paying the entire consideration under a possessory agreement of sale and that because of the relationship he did not obtain regular registered sale deed and that recognizing his interest in the land, the revenue authorities issued pattadar pass book and title deed book and mutated the property in his name and that he is only claiming rights as a possessory agreement holder and he is not denying the title of the plaintiff. When he pleaded that he is an agreement holder, under a contract of sale, he cannot at the same breath be heard to say that he is a cultivating tenant. Be that as it may. At another breathe he contends that he executed a gift deed in favour of his son, the 2nd defendant, though even according to his own case he is only an agreement holder and under law no title passes under an agreement of sale. In that view of the matter, the contention of the 1st defendant that he has not denied the title of the plaintiff over the plaint schedule property cannot be countenanced. Therefore, the contention of the plaintiff that he was obliged to seek declaration of title by approaching a civil Court merits acceptance.
Before proceeding further, it is to be noted that the 1st defendant even according to his own showing is only an agreement holder in respect of the plaint schedule property. He has no right, title and interest over the plaint schedule property and hence, under gift deed he cannot convey any right, title and interest in respect of the plaint schedule property to his son as it is settled law that no one can convey a better title than what he has. 10
MSRM,J SA_566_2019 Now dealing with the issue of jurisdiction, the only submission of learned counsel for the plaintiff is that since at the inception the 1st defendant was inducted into the plaint schedule land as a tenant the Special Officer of the Tenancy Tribunal under the Tenancy Act is only competent authority to decide the dispute between the tenant and the landlord and civil Court has no jurisdiction to decide the dispute whereas the counsel for the plaintiff contends that since the Special Officer has no jurisdiction to grant the relief of declaration of title the plaintiff is obliged to approach a civil Court and seek the relief not only declaration of title but also for consequential relief of recovery of possession and that, therefore, the civil Court is having jurisdiction to entertain the suit and grant the reliefs.
In support of the said contentions, learned counsel for the plaintiff placed reliance on the following decisions:
1. State of Tamil Nadu v. Ramalinga Samigal Madam and others [AIR 1986 SC 794]
2. Manepalli Lakshmi Sarojini v. Parise Sree Rama Mohana Rao.
It is apposite to note that on the 1st defendant, who was originally a tenant of the plaint schedule land, having obtained title deed book & pattadar pass book in his favour in respect of the plaint schedule property and got mutated the property in his name in the revenue records, executed a gift deed in favour of his son and thus denied the title of the plaintiff over the plaint schedule land. Therefore, the suit is filed seeking not only the relief of declaration of title of the plaintiff over the plaint schedule land but also consequentially for recovery of possession of the schedule land from the defendants. The Tenancy Tribunal is not having jurisdiction to grant the relief of declaration of title. No doubt, the jurisdiction of the Tenancy Tribunal in respect of matters provided under the Act is exclusive. But where the Tenancy Tribunal cannot grant the aforestated relief of declaration of title that was 11 MSRM,J SA_566_2019 claimed in the instant suit and when the suit is filed for the said relief as well as recovery of possession, a comprehensive suit of the said nature is maintainable before a civil Court, in the considered view of this Court. This view of this Court finds support from the ratio in Satya Pramoda Tirtha Swamula Varu v. M. Gunnayya [ AIR 1982 AP 24]. It has been held in the said judgment thus:
'It is now well established by a catena of decisions of this Court reported in Chigurupati Venkatasubbaiah v. Ravi Punnayya1957 (2) An.W.R. 204; Mahendrada Ramayya v. Mahdrada Govindu 1966 (1) An W R 352; and Donti Reddy Venkata Reddy v. Bhimavarapu Bhushireddy 1970 (2) An W R 226 (FB) that when only a part of the relief claimed can be granted by a tenancy Tribunal, the Civil Court had jurisdiction to entertain the suit and the Court below was in error in holding that the Civil Court had no jurisdiction to entertain the suit. In the light of this settled legal position this Court holds that the Civil Court is having jurisdiction to also grant the consequential relief of eviction claimed in the suit.' In view of the facts peculiar to the case and the legal position obtaining in the above decision, which squarely apply to the facts of the case, the decisions cited by the learned counsel for the defendants/appellants do not advance their case any further.
On a careful perusal, the judgments of the Courts below would reflect that the Courts below dealt with facts correctly and the evidence in proper perspective and that sustainable reasons are assigned in support of the concurrent findings recorded on issues of fact and on mixed questions of fact & law. Hence, this Court finds that the well reasoned judgments of the Courts below do not warrant interference. Further, after such careful examination of the pleadings, the evidence that was discussed by the Courts below and the contentions, this Court finds that no substantial question of law is involved, and hence, this second appeal is liable for dismissal at the stage of admission. The view of this Court is reinforced by the ratio in the decision in Gurudev Kaur v. Kaki (AIR 2006 SC 1975). In the case on hand, as this court finds, after careful examination of the pleadings, the evidence and the contentions, that 12 MSRM,J SA_566_2019 no substantial question of law is involved, this second appeal is liable for dismissal at the stage of admission in view of the narrow compass of Section 100 of the Code of Civil Procedure.
For the aforestated reasons, the Second Appeal is dismissed accordingly. The defendants are granted three months time from the date of receipt of a copy of this judgment for delivering vacant possession of the plaint schedule property to the plaintiff. It is needless to state that on failure of the defendants so to do, the plaintiff shall be at liberty to obtain delivery of vacant possession of the plaint schedule property in accordance with the procedure established by law.
There shall be no order as to costs.
Miscellaneous petitions pending, if any, shall stand closed.
______________________ M.SEETHARAMA MURTI, J 23.12.2019 Vjl 13 MSRM,J SA_566_2019 THE HON'BLE SRI JUSTICE M.SEETHARAMA MURTI Second Appeal no.566 of 2019 23.12.2019 Vjl